MAHARISHI HEAVEN EARTH Vs. NATIONAL INSURANCE CO.LTD.

JUDGEMENT

(1.) THE complainant entered into a contract with M/s. Intercontinental Business Development Ltd. on 16.7.1993, for import of 50 -60 meters of Rayan Grade Bleached Prehydrolysis Kraft Pulp Grade Solvinecell CS with delivery period as October November, 1993 at Bombay Port. M/s. Intercontinental Business Development Ltd. arranged the shipment from M/s. Riocell, Brazil against Invoice No. 93580 dated 31.8.1993. M/s. Riocell, Brazil confirmed the shipment as per SS IBN AL MOATAZ vide Invoice No. IB/IN/1/93 dated 29.9.1993. Prior to the shipment of the aforesaid goods, the complainant got the goods insured with the respondent/OP vide Insurance Policy bearing No. 354202/4310506/93 dated 27.8.1993 covering 52 MT of wood pulp under Dock and Inland transit. Under the policy, the goods were insured for a sum of Rs.11,00,000. The goods reached India on 18.11.1993, but the same were not delivered to the complainant and were allegedly delivered to some other party by Dock Authorities. The Port Authorities offered some consignment to the complainant, but the same was rejected by the complainant, who refused to take delivery of the same, as the said goods offered by the dock authorities were not part of the consignment sent to the complainant by M/s. Riocell, Brazil and found to be sub -standard and damaged on arrival. This was evident from analysis report of the Customs & Port Authorities and there was also shortage of contents in landing. The complainant filed a Marine Claim Form with the respondents on 4.7.1994, and the respondents were duly informed that the consignment was not acceptable because it was different from the original, as also had different makings and numbers. The complainant also informed the respondents in answer to question No.7 Nature of Damage in the claim form that the goods did not relate to the order of the complainant. The claim filed by the complainant was not settled. Ultimately, on 29.4.1999, the respondents rejected the claim on the ground that the complainant had no insurable interest at the time of loss and the loss had not taken place within the scope of the policy. The claim of the claimants was rejected on the following grounds:

(2.) THE respondent in their reply has stated that the delay in taking decision is attributable to the complainant who had not furnished all the relevant documents, which were required for settlement of the claim as a result of which, repeated letters/clarifications had to be sought. According to the respondents, after scrutinizing the claim papers it was found that the complainant had no insurable interest since the goods were not delivered and the insured had not made any payment since the payment for goods was to be made at the time of delivery of the consignment and, therefore, the insured did not benefit or lose on account of non -arrival of the goods. Therefore, according to the respondent, complainant had no insurable interest at the time of loss. Relying upon Clause 4.3 and 4.5 of the policy it was stated that the policy stipulates that damage/loss caused by insufficiency or unsuitability of packing or preparation of the subject matter is not covered by the policy and the policy excludes losses caused by delay even though the delay be caused by the risk insured against. It was admitted by the Insurance Company that the premium was accepted and the risk was covered under deck and Inland transit. It was also alleged that it is an essential and mandatory pre -condition in terms of statutory enactment of marine insurance that an insurable interest must subsist at the point of time when the loss takes place.

(3.) ON merits, it was stated that though the carrier had arrived on 17.11.1993 and the goods landed on 18.11.1993, the complainant delayed in taking requisite steps and, therefore, the survey could be conducted for the first time on 10.1.1994, 14.1.1994, 15.1.1994 and 7.5.1994. After processing the Bill of Entry, the clearing agent approached the steamer agents/Bombay Port Trust for taking delivery of the goods and at the time of approaching for taking delivery, 26 units were allegedly found to be lying in damaged/doubtful condition and as such, the complainant in January, 1994 applied for an insurance survey of the goods. After weighing of the goods, which were offered/presented for inspection to the surveyors and loss assessors, the surveyors had informed/advised the complainants clearing agents M/s. International Passage and Cargo Services, Bombay to intimate the surveyors about the programme of clearance of the goods from docks after completing all the formalities of Customs Authority/Bombay Port Trust Authorities. After a lapse of 3 months, the clearing agent of the complainants were contacted by the surveyors and the surveyors were informed that the contents of the goods are not of the same grade/quality as per purchase order/invoice and/or goods ordered and that the goods were other than rayon grade composed of chemical wood pulp derived from vegetable fiber material. Therefore, on further enquiry and investigation by surveyor and loss assessor and on the basis of other similar consignments dispatched/landed in the docks and cleared from the docks by other parties, the surveyor and loss assessors noted that the likely cost of damage/loss could be attributed presumably due to cross delivery/error in taking delivery by other clearing agents as the packing/packages seemed to look similar. It is also submitted by the respondent that the complainant did not make any attempt to verify from the suppliers as to the quality of goods, which had been dispatched. According to the respondents, the Surveyors report reveals that there was clearly insufficient packing/packages as there was no proper identification mark to separate one packet from the other.